09 June 2012

Removing Counsel and the "Possibility of Mischief"

In general, a lawyer can act for anyone willing to hire him or her, subject to one major exception: the existence of a conflict of interest. Under Chapter 6 of the Law Society's Professional Conduct Handbook, lawyers have a duty of undivided loyalty to each client and may not act against a former client. This means that if I have acted for Mr. Smith and Mr. Smith remarries, I cannot act for the new Mrs. Smith in the event she and Mr. Smith split up, and the court has the ability to remove a lawyer who is not just in but perceived to be in a conflict of interest.

In the unusual Supreme Court case of Svorinic v. Svorinic, the wife applied for an order that the husband's lawyer be restrained from acting for the husband, not because of a conflict of interest but because:

"a) [the lawyer] obtained confidential information about the respondent as a result of him representing her former husband ... in [her former husband's] family law action against [her] in the Provincial Court;

"b) ... several of the issues in the said Provincial Court action are closely connected to the issues in this Supreme Court action; and

"c) ... there is a risk that the confidential information will be used in this action, to the prejudice of the respondent."

In other words, there was no conflict of interest because the lawyer had previously acted for the wife, but because the lawyer had represented the wife's former husband he was alleged to have information about her that he wouldn't otherwise have had and was likely to use this information to the wife's disadvantage.

It probably didn't help that the lawyer had put the former husband on his list of witnesses for trial.

"[22] The court has inherent jurisdiction to make an order restraining a lawyer from continuing to act for a party to litigation. The purpose of this power is to prevent the 'possibility of mischief' occurring to the applicant, if the lawyer continues to represent the opposing party in the litigation. The applicant need only persuade the court that the 'possibility of mischief' exists, to justify the order.

"[23] To establish the 'possibility of mischief', the applicant must persuade the court that two questions must be answered in the affirmative, namely:

1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand?

2) [If so] Is there a risk that it will be used to the prejudice of the client?"

This is what the court said in MacDonald Estate, with the important bits in bold:

"In my opinion, once it is shown by the client that there existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant. This will be a difficult burden to discharge. Not only must the court's degree of satisfaction be such that it would withstand the scrutiny of the reasonably informed member of the public that no such information passed, but the burden must be discharged without revealing the specifics of the privileged communication. ...

"The second question is whether the confidential information will be misused. A lawyer who has relevant confidential information cannot act against his client or former client. In such a case the disqualification is automatic. No assurances or undertakings not to use the information will avail.The lawyer cannot compartmentalize his or her mind so as to screen out what has been gleaned from the client and what was acquired elsewhere. Furthermore, there would be a danger that the lawyer would avoid use of information acquired legitimately because it might be perceived to have come from the client. This would prevent the lawyer from adequately representing the new client. Moreover, the former client would feel at a disadvantage. Questions put in cross-examination about personal matters, for example, would create the uneasy feeling that they had their genesis in the previous relationship.

"[After the fact] undertakings ... in affidavits without more are not acceptable. These can be expected in every case of this kind that comes before the court. It is no more than the lawyer saying 'trust me'. This puts the court in the invidious position of deciding which lawyers are to be trusted and which are not. Furthermore, even if the courts found this acceptable, the public is not likely to be satisfied without some additional guarantees that confidential information will under no circumstances be used. ..."

In other words, the mere fact that a lawyer has acted for a party allows the court to assume that the lawyer has confidential information, and the lawyer can't duck the problem simply by promising not to use the confidential information.

Naturally, the argument in Svorinic then turned to whether the information the lawyer had really was "confidential." I was not able to completely understand the lawyer's argument, but it appears that he claimed that there is no presumed confidentiality that attaches to protect information gathered in a Provincial Court proceeding. The court disposed of that argument rather quickly:

"[58] In British Columbia, there exists an implied undertaking to the court in civil actions that the parties and their lawyers will not use any documents or answers obtained from each other under the Rules of Court governing documentary and oral discovery, for any purpose outside the civil proceedings in which the discovery was obtained. ... The undertaking applies to all documents and information obtained by compulsion pursuant to the rules governing pre-trial discovery (which would include court-ordered discovery under a Rule of Court). Moreover, the documents and information so obtained are protected by the undertaking, whether or not they were confidential or incriminatory in nature.

"[59] ... the implied undertaking applies to both the parties and their lawyers. Moreover, I can see no reason why the implied undertaking would not apply to parties and their lawyers in both civil and family proceedings in the Provincial Court. If that is a correct observation, then both Mr. Svorinic and [the former husband] are bound by the implied undertaking of confidentiality. They would be prohibited from exchanging with each other any documents or information obtained by them pursuant to the rules for pre-trial discovery or pursuant to a court order requiring disclosure. It is only documents and information obtained from the opposing party to the litigation which were acquired through the process of discovery under the Rules of Court, or by court order, that are subject to the undertaking."

In other words, the parties to a lawsuit and their lawyers are all under an obligation to keep information received in the litigation private and to not use the information except for the purposes of the litigation. This is a rather important point, and although most lawyers are familiar with the concept of litigation privilege, most clients are not and assume that the information gleaned in the course of litigation is free for public distribution by way of Tweets and Facebook posts. It isn't.

At the end of the day, the court in Svorinic held that the lawyer should be restrained from acting for the husband to prevent the possibility of mischief:

"[54] I infer from the facts which I have found that there is a risk that [the lawyer] would misuse some of the confidential information about the respondent that he acquired as a consequence of his retainer by [the former husband]. That means that there is a possibility that mischief will occur if [the lawyer] continues to represent the claimant. That is all that the applicant need establish on an application of this kind.

"[55] In the result, the claimant’s right to counsel of his choice must give way to the need to maintain the high standards in the legal profession and the integrity of the justice system."

I would like to thank my friends and colleagues Stephanie Fabbro and Agnes Huang, both of whom are skilled family law counsel, for pointing this case out to me.

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